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HCAL 487/2018
[2019] HKCFI 2585
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 487 of 2018
BETWEEN
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Khan Kamran |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The applicant is a 32-year-old national of Pakistan who entered Hong Kong illegally on 18 March 2016 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Pakistan he would be harmed or killed by his paternal uncle over a land dispute in his home village. He was subsequently released on recognizance pending the determination of his claim.
2. The applicant was born and raised in Village Khurkhel, Tehsil Hazro, Attock District,Punjab Province, Pakistan where his father together with his paternal uncles had inherited some farmland from his grandfather.
3. In 2014 upon the passing of his father, the applicant inherited his father’s share of the farmland in the village, which was however coveted by Uncle Haider who was a wealthy landowner with political connections as well as being a member of the village council.
4. Soon Uncle Haider would come to the applicant’s home demanding him to transfer his land to him, and when the applicant refused, on one occasion his men punched and kicked him violently, and before they left, Uncle Haider warned the applicant that if he continued to refuse the demand, he would soon be killed.
5. After receiving medical treatment at a local clinic, the applicant reported the threats to the police but to no avail due to his uncle’s influence in the village. To avoid further threats from his uncle, the applicant therefore left Pakistan in September 2015 for Turkey, but when he transited in Iran, he was detained by the authority and with his passport confiscated, after 5 days he was repatriated to Pakistan.
6. Upon obtaining a new passport, the applicant again departed Pakistan on 4 March 2016 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 17 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.
7. By a Notice of Decision dated 16 August 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).
8. In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from his uncle to the applicant upon his return to Pakistan as low due to the low intensity and frequency of past ill-treatment from him, that it was a private family dispute over land between him and his uncle without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Pakistan with a large population of 199 million people spread across a vast territory of more than 770,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to other part of Pakistan away from his home district in large cities such as Islamabad where it would be difficult if not impossible for his uncle to locate him.
9. By a Notice of Further Decision dated 23 March 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).
10. By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 23 August 2016, and for which he attended an oral hearing on 9 January 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board. On 7 March 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.
11. In its decision the Board accepted that the applicant might have a land dispute with his uncle in his home village in Pakistan, but found it to be a personal issue without any official involvement that with state protection as well as reasonable internal relocation alternatives available for the applicant to safely relocate to other part of Pakistan that his claim for non-refoulement protection failed on all applicable grounds.
12. On 26 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely repeated his claim that his life would still be in danger in his home country and hence he wants to stay in Hong Kong to save his life. In the absence of any legal error or procedural unfairness in his process before the board or in its decision being identified by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.
13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.
14. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Pakistan, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.
15. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.
16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.
Dated the 19th day of December 2019.
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(NG Ka-wing) |
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for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 19th December 2019
Khan Kamran
Applicant’s ref. no.:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 19th December 2019
Torture Claims Appeal Board Putative Respondent’s ref. no.:
USM 4515/16/8/234/P1101
Director of Immigration
Putative Interested Party’s ref. no.:
RBCZ 9000663/17
(Formerly RBCZ 11239/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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